New York Legislators Introduce Legislation to End Widespread Elder Abuse

ALBANY, NY (May 6, 2014) – The case against Anthony Marshall, son of socialite Brooke Astor, who committed grand larceny by taking $5.75 million from his mother,

Senators Avella, Valesky, Gallivan and colleagues introduced a package of legislation (eight bills) to prevent and eliminate elder financial abuse in New York State, a crime that often goes unreported.

received a lot of press, but according to a new report elder financial abuse by "loved ones" and people they've come to know and trust is not an uncommon occurrence in New York State.

Recent polls and studies show significant portions of the elderly population are financially exploited, and most of those -- one out of every 23 -- goes unreported.

To combat elder abuse, Senators David J. Valesky (D-Oneida), Patrick Gallivan (R-Elma) and colleagues in the Senate Majority Coalition have introduced a package of legislation they hope will prevent and, hopefully, eliminate the scourge of elder abuse. (Click here for the report called Protecting Our Elderly: Curbing the High Incidence of Elderly Financial Exploitation in New York State and the package of eight elder abuse prevention bills.)

“Financial exploitation covers a wide variety of offenses – illegal use of a debit or credit card, deceiving a person into signing over property or conducting phony transactions over the Internet – and elder abuse occurs more often within the confines of people’s homes where more intimate relationships can serve as a shield to illegal behavior,” Sen. David J. Valesky, Chairman of the Senate Aging Committee, said when he introduced the legislation.

Trusting Perpetrators

Elder financial abuse often goes unreported because victims know and trust the perpetrators, according to the coalition of Senators that included Sen. Gallivan, Chairman of the Senate Crime Victims, Crimes and Corrections Committee, who were all supporting the package of legislation.

The package of legislation has wide support and among Senators -- it's a two house bill -- and among them is Sen. Tony Avella, who also took the mike during the press conference releasing the report and package of legislation.

“I can tell you from my own experience in my Senate District and in my previous experience as a member of the New York City Council how many situations I have come across where seniors have been victimized in terms of their finances for not just thousands of dollars but tens of thousands of dollars,” Sen. Avella said. “I even had a situation where a senior was bilked out of her home by a family member. These type of situations in today’s society should not be happening. Seniors have given so much to this state and this country and we much be able to be there to protect them from these types of abuses that are so disgraceful and sometimes rob them of their entire financial resources which they’ve saved over a lifetime.”

Sen. Avella echoed the sentiments of his colleagues and aging advocates at the press conference when he said: “We need to get this passed this session.”

Leaders from two well known aging advocates groups also spoke in support of the legislation through a press release. “The local offices for aging, on the front lines every day serving the needs of our older population, welcome the support of our state legislative leaders who understand the importance of protecting older New Yorkers so they can successfully age in place with both dignity and independence,” said Laura Cameron, Executive Director of the Association on Aging in NY, which represents the 59 mostly county-base offices for aging.

Seniors tend to be vulnerable to certain degrees of financial abuse, including theft, concealment of funds, or even property partly due to Cognitive illnesses, such as Alzheimer's or dementia and as the senior population grows so will the incidences of abuse.

“It’s a sad fact that in this nation not a minute goes buy across America where a vulnerable senior is not a victim of financial emotional or physical abuse,” said Senator Michael F. Nozzolio, who attended the press conference spoke in support of the eight bills, one of which he sponsored.

Financial Exploitation

New York State lacks a statutory definition for prosecuting elder abuse. Instead, it relies upon separate definitions under the New York State Social Services Law. One pertains to “adult abuse” for individuals over the age of 18 who may be dependent on someone else, while another, “financial exploitation,” deals with the improper use of ones funds, property, resources, and so forth.

“We have the force of law in New York State to compel families to accept services when their child is at risk to life and or health,” said Maria Alvarez, Executive Director of the Statewide Senior Action Council. “Unfortunately we don’t have that force of law with seniors. Seniors are equally as vulnerable as children but often their services are not provided, they’re not compelled and that makes it even more dangerous for seniors particularly around financial abuse. It’s going to provide us the op to enact rules that say a bank or any financial institution can refuse the transaction of funds or a social service agency or law enforcement agency when they reasonably believe a senior is a victim of financial abuse. Right now that doesn’t occur people can swindle seniors and they do it routinely. Whether they be family member or caregivers.”
Banking Industry

One of the bills with support from the banking industry authorizes banks to refuse any transaction of moneys if the banking institution, social services official, or law enforcement agency reasonably believes that financial exploitation of a vulnerable adult has occurred or may occur.

“Financial exploitation is a very large growing problem. It’s estimated nationally it cost older Americans $2.9 billion in 2011. Yet that’s just the tip of the iceberg because so often this goes unreported,” said Beth Finkel, Director of the New York State office of AARP.

Senator David Carlucci, a supporter of the package of bills, concurred: “This report has glaring examples of why we can’t stay silent any longer,” Sen. Carlucci said. “Enough is enough. The abuse of our elders has to stop. It perpetrates all areas of our state. I see week after week these cases come forward. These scam artists are getting smarter and smarter. There finding out other ways to abuse people.”

Bobbie Sackman, Director of Public Policy for the Council of Senior Centers and Services, called the legislation pioneering and groundbreaking.

“Make no mistake this has not been done before," Bobbie said. "The thinking has gone to all sides of this to help the banks who want to stop perpetrators from ripping off people in their 70s 80s and 90s. It will help banks report and disclose the information in a timely way so you can stop the bleeding and not watch the money disappear week after week. There a quarter of a million people in this state who are currently experiencing some form of elder abuse in the shadows. And it would be nice if we could build community based services to help elder abuse victims.”

Ann Marie Cook, President and CEO of Lifespan, wasn’t on hand for the press conference but she added her own statement to a press release from Sen. Valesky: “One of Lifespan’s primary objectives has always been to protect older New Yorkers from all types of abuse. Whether it’s physical, psychological, or financial we will work every day to protect our parents, family, friends, and neighbors,” she said. “These are critical pieces of legislation that will help older New Yorkers and their families enjoy their golden years together.”

Legislative package includes the following mostly two-house bills. Click on each bill to view the original bill and text.

• S.6221 (Valesky) authorizes banks to refuse any transaction of moneys if the banking institution, social services official, or law enforcement agency reasonably believes that financial exploitation of a vulnerable adult has occurred or may occur.

• S.7179 (Valesky) A.8778 (Schimminger) proposes to allow a prosecutor to obtain medical records, without a privilege waiver, with a subpoena, endorsed by the court, based upon a showing that the patient suffers from a mental disability, and that the patient has been a victim of a crime.

• S.2951 (Valesky) A2781 (Morelle) expands the definition of “caregiver” under the penal law to include a person who voluntarily, or otherwise by operation of law (such as an appointed guardian or power of attorney), assumes responsibility of an elderly person so that they would be tried under the “endangering the welfare of a vulnerable elderly person” law.

• S.2323-A (Klein) A.591 (Morelle) requires the Office of Children and Family Services to define, identify, and collect data related to the incidence of elder abuse possessed by state and local agencies. It also mandates the Office of Children and Family Services to establish an inter-agency reporting system that contains a uniform set of standards to collect and analyze information on the incidence of elder abuse.

• S.7177 (Gallivan) A8777 (Schimminger) seeks to establish that an alleged abuser may not use the defense of obtained consent to take, withhold, or obtain property, where such consent was obtained from a person whom the accused knew or had reason to know was mentally disabled.

• S.7187 (Nozzolio) A8781 (Schimminger) amends the penal law to explicitly state that in a prosecution for larceny by false promise, partial performance does not, by itself, prevent a reasonable jury from making such finding from all the facts and circumstances.

• S.7188 (Nozzolio) A8780 (Schimminger) would allow a caregiver to accompany a vulnerable elderly person who is testifying in front of a grand jury. The caregiver may only fulfill their function with the consent of the prosecutor.

• S.7178 (Gallivan) A8779 (Schimminger) allows the prosecution and defense attorneys to preserve the testimony of witnesses who are age 75 or older.